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Exhibit 2.1
9/14/99
DISTRIBUTION AGREEMENT
Dated _________, 1999
Between
GENCORP INC.
and
OMNOVA SOLUTIONS INC.
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CONTENTS
Page
----
I. Definitions.............................................
II. Contribution............................................
2.01. Assets Contributed...............................
2.02. Retained Assets..................................
2.03. Assumed Liabilities..............................
2.04. Retained Liabilities.............................
2.05. Issuance of Shares...............................
2.06. Closing..........................................
2.07. Assignment of Assets.............................
2.08. Termination of Certain Contracts ................
2.09. Disclaimer.......................................
III. Distribution
3.01. Distribution................................................
3.02. Delivery....................................................
IV. Certain Covenants
4.01. Interim Use of GenCorp's Corporate Name.....................
4.02. Transition and Further Assurances...........................
4.03. Assets Administration.......................................
4.04. Correspondence..............................................
4.05. Interim Permit Operations...................................
4.06. Agreement for Exchange of Information.......................
4.07. Witness Services............................................
4.08. Confidentiality.............................................
4.09. Certain Tax Matters.........................................
4.10. Insurance Matters...........................................
4.11. Resignations................................................
V. Indemnification
5.01. Indemnification by GenCorp Inc..............................
5.02. Indemnification by OMNOVA...................................
5.03. Third Party Claim Procedures................................
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VI. Miscellaneous Provisions
6.01. Notices.....................................................
6.02. Entire Agreement............................................
6.03. Assignment..................................................
6.04. Captions....................................................
6.05. Waiver; Consent.............................................
6.06. No Third Party Beneficiaries................................
6.07. Survival of Agreements......................................
6.08. Expenses....................................................
6.09. Group Performance...........................................
6.10. Counterparts................................................
6.11. Gender ...................................................
6.12. Governing Law...............................................
6.13. Consent to Service..........................................
6.14. Interpretation..............................................
6.15. Blue Pencil.................................................
Schedules
1.01(a) Corporate Real Property
1.01(b) Certain Discontinued Operations
1.01(c) OMNOVA Real Property
1.01(d) OMNOVA Entities
1.01(e) OMNOVA Discontinued Operations
1.01(f) OMNOVA Intellectual Property
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DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") dated _________________,
1999, is by and between OMNOVA SOLUTIONS INC., an Ohio corporation ("OMNOVA"),
and GENCORP INC., an Ohio corporation ("GenCorp").
WHEREAS, the Board of Directors of GenCorp (the "GenCorp Board") has
determined that it is in the best interests of GenCorp and its shareholders to
transfer the Contributed Assets to OMNOVA in exchange for OMNOVA Common Stock
and OMNOVA's assumption of the Assumed Liabilities, all as more fully described
in this Agreement and the Ancillary Agreements (the "Separation");
WHEREAS, the GenCorp Board has further determined that it may be
appropriate and desirable, on the terms and conditions contemplated hereby, for
GenCorp to distribute to the holders of GenCorp Common Shares, as a dividend,
all of the outstanding common shares, $0.10 par value, of OMNOVA (the "OMNOVA
Common Stock"), (the "Distribution"); and
WHEREAS, it is appropriate and desirable to set forth the principal
transactions required to effect the Separation and the Distribution and certain
other agreements that will govern certain matters relating to the Separation and
the Distribution and the relationship between the GenCorp Group and the OMNOVA
Group following the Distribution.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, OMNOVA and GenCorp hereby agree as follows:
ARTICLE I: DEFINITIONS
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Section 1.01. Terms used in this Agreement shall have the meanings
ascribed to them by definition in this Agreement.
"ACTION" means any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local,
foreign or international Governmental Authority or any arbitration or mediation
tribunal.
"ADDITIONAL ASSETS" means the following assets, properties and rights
of GenCorp and all rights and interests therein:
(a) the real property described in Schedule 1.01(a), including
all rights, easements and privileges appertaining or relating thereto and all
buildings, fixtures and improvements located thereon and therein and all such
items under construction;
(b) all tangible personal property, plant, manufacturing and
equipment, all apparatus, computers and other electronic data processing
equipment, fixtures, machinery, equipment, furniture, office equipment,
automobiles, trucks, dies, molds, patterns, aircraft,
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vessels, motor vehicles and other transportation equipment, special and general
tools, test devices, prototypes and models and other tangible personal property,
wherever located, whether, owned or leased, licensed or otherwise which is used,
held for use or being developed for use primarily for the GenCorp Corporate
Headquarters, the GenCorp Corporate Technology Center or the GenCorp Flight
Operations;
(c) all inventories of materials, parts, raw materials,
finished goods, products and supplies, wherever located, used, held for use or
being developed for use primarily for the GenCorp Corporate Headquarters, the
GenCorp Corporate Technology Center or the GenCorp Flight Operations;
(d) all computer applications, programs and other software,
user and system documentation and instructions, source code, functional and
design specifications, network software, design software, design tools and all
protocol/internet addresses, wherever located, used, held for use or developed
for use primarily for the GenCorp Corporate Headquarters, the GenCorp Technology
Center or the GenCorp Flight Operations, but excluding the PC based software for
the Treasury and Shareholder Services function, and excluding one copy of any
software code written by GenCorp for the Xxxxxx human resource software package
and all data pertaining to employee and employee benefit matters in respect of
any employees who will not become employees of OMNOVA or an OMNOVA entity;
(e) the Additional Technology; and
(f) all Contracts, Leases, Intellectual Property, Records,
Information and Claims which (i) pertain primarily to the items described in
(a), (b), (c), (d) or (e) above, or (ii) which are used, held for use or being
developed for use primarily for the GenCorp Corporate Headquarters, the GenCorp
Technology Center or the GenCorp Flight Operations and which pertain primarily
to the OMNOVA Business, including, without limitation, employee and employee
benefit matters information in respect of persons who became OMNOVA employees.
"ADDITIONAL TECHNOLOGY" means any Intellectual Property of GenCorp
which pertains to coatings, adhesives, polymers (including, without limitation,
polymer processing and surface modification), blends or alloys of polymers and
other materials, non-polymer substrates, or processing methods, but excluding
any rights to the extent pertaining to vehicle sealing applications.
"AFFILIATE" is defined in the Tax Matters Agreement.
"AGREEMENT" means this Distribution Agreement, including all of the
Schedules hereto.
"ANCILLARY AGREEMENTS" mean (i) the Agreement on Employee Matters, the
Tax Matters Agreement, the Services and Support Agreement, and the Alternative
Dispute Resolution
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Agreement by and between the parties and dated as of the date hereof and (ii)
such deeds, stock powers, bills of sale, certificates of title, assignments,
assumptions and other agreements, instruments and conveyances (including,
without limitation, the License Agreement and the Non-Fluorinated Oxetane
License Agreement among OMNOVA and Aerojet-General Corporation and/or Aerojet
Fine Chemicals LLC) as are executed and delivered by or on behalf of a party
pursuant to this Agreement or any Ancillary Agreement described in (i).
"ASSUMED LIABILITY" is defined in Section 2.03.
"BUSINESS DAY" means any day on which commercial banks are not required
or authorized by law to close in the City of New York, State of New York, U.S.A.
"CAA" means the United States Clean Air Act.
"CERCLA" means the United States Comprehensive Environmental Response,
Compensation and Liability Act.
"CWA" means the United States Clean Water Act.
"CLAIM" means any cause of action, judgment, right of recovery, right
of action, right of set-off, credit, rebate, indemnity or other claim against
other Persons, of whatever kind or nature, known or unknown, accrued or to
accrue, including, without limitation, all rights of rescission, replevin and
reclamation, all rights and claims in respect of past infringement, all credits
or rebates due in respect of charges incurred, goods received or services
rendered and all rights under any express or implied warranties, representations
or guarantees made by suppliers, contractors or others.
"CLOSING" is defined in Section 2.06.
"CLOSING TIME" is defined in Section 2.06.
"CODE" is defined in the Tax Matters Agreement.
"CONSENT" is defined in Section 2.07.
"CONTRACTS" means any agreements, contract rights, license agreements,
leases of personal property, open purchase orders for raw materials, supplies,
parts or services, unfilled orders for the manufacture and sale of products and
other contracts, agreements, commitments or undertakings.
"CONTRIBUTED ASSETS" is defined in Section 2.01.
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"DISCONTINUED OMNOVA OPERATIONS" means any terminated, divested or
discontinued business or operation of GenCorp or any OMNOVA Entity which is
described on Schedule 1.01(e).
"DISTRIBUTION AGENT" means Bank of New York, or such other trust
company or bank designated by GenCorp, to act as the agent responsible for the
distribution of the OMNOVA Common Stock in the Distribution.
"DISTRIBUTION DATE" is defined in Section 3.01.
"DISTRIBUTION DIVIDEND" is defined in Section 3.01.
"DISTRIBUTION RECORD DATE" is defined in Section 3.01.
"DOLLARS" or "$" means United States dollars.
"ENVIRONMENTAL LAW" means any federal, state, local, foreign or
international statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, common law doctrine (including tort,
contribution, strict liability, negligence, trespass and nuisance), order,
judgment, decree, injunction, requirement or agreement with any Governmental
Authority, now or hereafter in effect relating to health, safety, pollution or
the environment (including ambient air, surface water, groundwater, land
surface, subsurface strata and natural resources) or to emissions, discharges,
releases or threatened releases of any substance currently or at any time
hereafter listed, defined, designated or classified as hazardous, toxic, waste,
radioactive or dangerous, or otherwise regulated, under any of the foregoing, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of any such substances, including,
without limitation, CERCLA, RCRA, CWA, CAA, TSCA and comparable provisions in
state, local, foreign or international law.
"ENVIRONMENTAL LIABILITIES" means all Liabilities relating to, arising
out of or resulting from any Environmental Law or contract or agreement relating
to environmental, health or safety matters (including all removal, remediation
or cleanup costs, investigatory costs, governmental response costs, natural
resources damages, property damages, personal injury damages, costs of
compliance with any settlement, judgment or other determination of Liability and
indemnity, contribution or similar obligations) and all costs and expenses
(including allocated costs of in-house counsel and other personnel), interest,
fines, penalties or other monetary sanctions in connection therewith.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, in effect
from time to time.
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"FORM 10" means the registration statement on Form 10 filed by OMNOVA
with the SEC to effect the registration of the OMNOVA Common Stock under the
Exchange Act.
"GENCORP ENTITY" means any corporation, partnership, joint venture,
limited liability company, alliance, association or legal entity in which
GenCorp, directly or indirectly, has or had any equity, ownership, investment,
profit, management or other interest, but excluding the OMNOVA Entities.
"GENCORP GROUP" means GenCorp and the GenCorp Entities.
"GENCORP COMMON STOCK" means the Common Shares, $.10 par value per
share, of GenCorp.
"GENCORP INDEMNITEES" is defined in Section 5.02.
"GENCORP INSURANCE" is defined in Section 4.10.
"GENCORP OVERSEAS" means GenCorp Overseas Inc., an Ohio corporation.
"GOVERNMENTAL AUTHORITY" means (i) the United States of America, any
State thereof, or any court, department, commission, board, bureau, agency or
instrumentality of the United States of America, any State thereof, or political
subdivision of any of them, (ii) any other body, authority or agency exercising
any form of administrative or regulatory authority under any applicable Legal
Requirement, (iii) any quasi-governmental court, body, agency or authority, (iv)
any corporation established by or at the direction of any of the foregoing and
authorized by statute to exercise regulatory authority, and (v) any foreign
government or governmental authority comparable to any of the foregoing.
"GROUP" means the OMNOVA Group or the GenCorp Group.
"INDEMNIFIED PARTY" is defined in Section 5.03(a).
"INDEMNIFYING PARTY" is defined in Section 5.03(a).
"INDEMNITY NOTICE" is defined in Section 5.03(a).
"INFORMATION" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how, trade
secrets, techniques, designs, specifications, drawings, blueprints, diagrams,
models, prototypes, samples, flow charts, data, computer data, disks, diskettes,
tapes, computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other
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materials prepared by attorneys or under their direction (including attorney
work product), and other technical, financial, employee or business information
or data.
"INTELLECTUAL PROPERTY" means any and all United States and foreign:
(a) patents (including, without limitation, utility patents, design patents,
reissued and reexamined patents industrial designs and utility models),
inventors' certificates and patent applications (including docketed patent
disclosures awaiting filing determination or preparation, reissues, revisions,
reexaminations, divisions, continuations, continuations-in-part and extensions),
all extensions, the right to claim priority, and any improvements to any of the
foregoing; (b) trademarks, trade names, service marks, service names, fictitious
names, telephone numbers, trade dress, symbols, marks, logos, business and
product names, slogans and rights to obtain renewals and extensions thereof and
registrations and applications for registration thereof together with all
translations, adaptations, derivations, and combinations thereof; (c) works of
authorship (whether or not copyrightable and/or registerable and whether or not
registered), including, without limitation, work of art and computer software,
patterns and designs and copyright registrations, registration applications and
right to obtain renewals and extensions thereof; (d) inventions (whether
patentable or unpatentable and whether or not reduced to practice), processes,
designs, formulae, trade secrets, proprietary knowledge, know-how, industrial
models, technical information, manufacturing, engineering and technical
drawings, product specifications, compositions, research and development,
manufacturing and production processes and techniques; (e) mask work and other
semiconductor chip rights and registrations thereof; (f) computer applications,
programs and other software and all related data, user and system documentation
and instructions, source code, functional and design specifications, network
software, design software, design tools and, web sites and addresses; (g)
intellectual property rights similar to any of the foregoing; (h) all books,
records, documents, drawings, tapes, disks or other media or tangible
embodiments of any of the foregoing (in whatever form or media, including
electronic and magnetic media) and (i) all goodwill pertaining to any of the
foregoing.
"KNOWLEDGE" OR "KNOWN" means that the knowledge of middle management,
senior management or any member of the board of directors of the GenCorp Group
or OMNOVA Group or the knowledge any of such persons would have after reasonable
investigation.
"KNOWN LIABILITIES" means any actual or alleged liability or obligation
of the GenCorp Group or the OMNOVA Group which is Known to any member of the
GenCorp Group or the OMNOVA Group (including, without limitation any matter as
to which any member has received a notice claiming or alleging such liability or
obligation or has paid any amounts or entered into or became subject to any
settlements, agreements, decrees, orders, judgments, or other obligations), but
the term "Known Liability" excludes any liability or obligation which: (i) is
provided for on the OMNOVA Balance Sheet, (ii) results or arises from the
condition of any facility listed on Schedule 1.01(c) (including, without
limitation, Environmental Liabilities resulting from any such condition), (iii)
results or arises from the business or operations of the
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OMNOVA Business in the ordinary course (E.G., performance of contracts and
payment of trade payables).
"LEGAL REQUIREMENT" means any federal, state, local, municipal, foreign
or international, constitution, law, ordinance, principle of common law,
regulation, statute, treaty or order, including, without limitation the
Environmental Laws.
"LOSSES" means all Actions and threatened Actions, and all damages,
costs, expenses, losses, liabilities, judgments, awards, fines, sanctions,
orders, consent decrees, diminution in value, penalties, charges and settlement
payments, whether absolute or contingent, foreseen, unforeseen, accrued or
unaccrued, known or unknown, liquidated or unliquidated, matured or unmatured,
now existing or which may arise in the future (including, without limitation,
all reasonable costs, fees and expenses of attorneys, experts, accountants,
appraisers, consultants, witnesses, and investigators in connection with
defending or settling an Action or threatened Action) and interest on cash
disbursements in respect of any of the foregoing at the Reference Rate from the
date each such cash disbursement is made until the party incurring the same
shall have been indemnified in respect thereof.
"NEW GENCORP BALANCE SHEET" means ____________________.
"NON-PROPOSING PARTY" is defined in Section 4.09.
"NYSE" means the New York Stock Exchange.
"OMNOVA BALANCE SHEET" means the OMNOVA balance sheet as of September
30, 1999 which shall be the balance sheet for OMNOVA as of August 30, 1999
updated consistent with the manner in which the August 30, 1999 balance sheet
was prepared to reflect the period from August 30, 1999 to September 30, 1999.
"OMNOVA BUSINESS" means the business and operations of: (a) the
Performance Chemicals Division of GenCorp as such business and operations are
currently being conducted, (b) the Decorative & Building Products Division of
GenCorp as such business and operations are currently being conducted, and (c)
the OMNOVA Entities.
"OMNOVA BUSINESS ASSETS" means any and all assets, properties and
rights of GenCorp, Penn International and GenCorp Overseas that are used, held
for use or being developed for use primarily for the OMNOVA Business and all
rights and interests therein, wherever located (including in the possession of
vendors or other third parties or elsewhere), whether real, personal or mixed,
tangible, intangible or contingent, in each case whether or not recorded or
reflected or required to be recorded or reflected on the books and records or
financial statements of GenCorp, GenCorp International, or GenCorp Overseas,
including, without limitation, the following:
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(a) All real property of whatever nature, whether owned,
leased, licensed or otherwise, including all rights, easements and privileges
appertaining or relating thereto and all buildings, fixtures and improvements
located thereon and therein and all such items under construction including,
without limitation, the real property listed on Schedule 1.01(c);
(b) All tangible personal property, plant, machinery and
equipment, apparatus, computers and other electronic data processing equipment,
fixtures, machinery, equipment, furniture, office equipment, automobiles,
trucks, dies, molds, patterns, vessels, motor vehicles and other transportation
equipment, special and general tools, test devices, prototypes and models and
other tangible personal property, whether owned, leased, licensed or otherwise;
(c) All inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and products including items
purchased for distribution or resale;
(d) All capital stock, minute books, stock records, corporate
records, corporate seals and treasury shares of the OMNOVA Entities;
(e) All rights, benefits and interests under any Contracts;
(f) All rights under any deposits, letters of credit and
performance and surety bonds;
(g) All accounts, accounts receivable and any payments with
respect thereto after the Closing Time, unpaid interest on accounts receivable
and any security or collateral relating thereto, notes receivable, security and
other deposits, advance payments, prepayments and credits, whether recorded or
unrecorded;
(h) All Intellectual Property including, without limitation,
the items on Schedule 1.01(f);
(i) All Information and Records;
(j) All rights under any Claim;
(k) All rights under insurance policies and all rights in the
nature of insurance, indemnification or contribution which pertain exclusively
to the OMNOVA Business;
(l) all bank accounts, lock boxes and other deposit
arrangements; and
(m) all goodwill.
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"OMNOVA DIVIDEND" is defined in Section 4.12.
"OMNOVA ENTITIES" means the Persons listed on Schedule 1.01(d).
"OMNOVA GROUP" means OMNOVA and the OMNOVA Entities.
"OMNOVA INDEMNITEES" is defined in Section 5.01.
"PARTIES" means OMNOVA and GenCorp.
"PENN INTERNATIONAL" means Penn International Inc., an Ohio
corporation.
"PERMITS" means any authorization, approval, franchise, orders,
consent, license, permit, registration, waiver or certificate issued, granted,
given, or otherwise made available by or under the authority of any Governmental
Authority or pursuant to any Legal Requirement.
"PERSON" means any individual, partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, estate, trust,
organization, labor union, Governmental Authority or other legal entity of any
kind, other than the parties or member of a Group.
"PROPOSING PARTY" as defined in Section 4.09.
"RCRA" means the United States Resource Conservation and Recovery Act.
"RECORDS" means books, records, files, plans, surveys, studies,
reports, manuals, drawings, handbooks, catalogs, brochures, correspondence,
documents, forms, accounts, lists, catalogs, promotional or marketing materials
and other materials, whether in hard copy, electronic or any other form or
media, including, without limitation, any of the same pertaining to accounting,
sales, costs, pricing, marketing, advertising, promotions, suppliers, customers,
personnel, human resources, dealers, distributors, inventory, engineering,
equipment, manufacturing, business plans and strategies and product development.
"REFERENCE RATE" means the interest rate equal to the prime rate as
publicly announced by Citibank, N.A., New York, New York, from time to time.
"RETAINED ASSETS" is defined in Section 2.02.
"RETURN" is defined in the Tax Matters Agreement.
"RULING" is defined in the Tax Matters Agreement.
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"RULING REQUEST" is defined in the Tax Matters Agreement.
"SEC" means the Securities and Exchange Commission.
"SPIN-OFF" is defined in the Tax Matters Agreement.
"SPIN-OFF TAXES" is defined in the Tax Matters Agreement.
"TSCA" means the United States Toxic Substances Control Act.
"TAX MATTERS AGREEMENT" means the Tax Matters Agreement dated
______________, 1999 between GenCorp and OMNOVA.
"TAXES" is defined in the Tax Matters Agreement.
"TERMINATE" is defined in Section 4.10.
"THIRD PARTY CLAIM" means with respect to any party, the assertion of a
claim or demand or commencement of any Action against such party by any Person.
"TRANSACTION DOCUMENTS" means this Agreement and the Ancillary
Agreements.
"TRANSFER" is defined in Section 2.07.
ARTICLE II: CONTRIBUTION
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Section 2.01. ASSETS CONTRIBUTED. Upon the terms and subject to the
conditions of this Agreement, at the Closing and effective as of the Closing
Time, GenCorp, GenCorp Overseas and Penn International shall contribute, assign,
convey, transfer and deliver to OMNOVA and cause GenCorp Overseas and Penn
International to transfer to OMNOVA, and OMNOVA or its designee shall accept and
acquire from GenCorp, GenCorp Overseas, and Penn International all right, title
and interest of GenCorp, GenCorp Overseas and Penn International in and to the
following (collectively, the "Contributed Assets"):
(a) the OMNOVA Business Assets; and
(b) the Additional Assets.
Section 2.02. RETAINED ASSETS. Upon the terms and subject to the
conditions of this Agreement, notwithstanding Section 2.01, the following
rights, properties, assets of GenCorp and the GenCorp Entities are not included
in and are excluded from the Contributed Assets (the "Retained Assets"):
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(a) All cash, other than xxxxx cash held at any of the
facilities listed on Schedule 1.01(c);
(b) All minute books, stock records, corporation records,
corporate seals, treasury shares and tax returns and supporting schedules of
GenCorp and any GenCorp Entity;
(c) Subject to Section 4.01 and to the trademarks included in
the Contributed Assets, the name "GenCorp";
(d) Subject to Section 4.10 and item (k) in the definition of
OMNOVA Business Assets all rights of GenCorp under any GenCorp Insurance;
(e) Subject to the Employee Matters Agreement, all employee
benefit plans;
(f) All of the capital stock of the GenCorp Entities; and
(g) Any other right, property or asset not described in
Section 2.01.
Section 2.03. ASSUMED LIABILITIES. Upon the terms and subject to the
conditions of this Agreement (including, without limitation, Section 2.04), at
the Closing Time, OMNOVA will absolutely and irrevocably assume and thereafter
pay, perform and discharge the following liabilities and obligations to the
extent not covered by GenCorp Insurance (the "Assumed Liabilities"):
(a) all liabilities and obligations of any nature of GenCorp,
Penn International and GenCorp Overseas, or claims of such liability or
obligation, whether arising under contract, tort or any other legal theory and
whether absolute or contingent, foreseen or unforeseen, accrued or unaccrued,
known or unknown, liquidated or unliquidated, matured or unmatured, now existing
or which may arise in the future, to the extent arising primarily out of the
OMNOVA Business or the OMNOVA Discontinued Operations (including, without
limitation, all environmental liabilities arising primarily out of the OMNOVA
Business); and
(b) all liabilities and obligations of any nature of GenCorp
or claims of such liability or obligation, whether arising under contract, tort
or any other legal theory and whether absolute or contingent, foreseen or
unforeseen, accrued or unaccrued, known or unknown, liquidated or unliquidated,
matured or unmatured, now existing or which may arise in the future, to the
extent arising primarily out of the Additional Assets
;provided, however, that notwithstanding the foregoing Sections 2.03(a) and (b)
the Known Liabilities shall be excluded from such assumed liabilities and
obligations and the Known Liabilities shall be Retained Liabilities.
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Section 2.04. RETAINED LIABILITIES. Except for the Assumed Liabilities
and notwithstanding anything to the contrary, OMNOVA and the OMNOVA Entities do
not assume and GenCorp and the GenCorp Entities shall, without any
responsibility or liability of, or recourse to OMNOVA or any OMNOVA Entity,
absolutely and irrevocably retain and be solely responsible for any and all
liabilities or obligations of any nature of GenCorp or any GenCorp Entity or
claims of such liability or obligation, whether arising under contract, tort or
any other legal theory and whether absolute or contingent, foreseen or
unforeseen, accrued or unaccrued, known or unknown, liquidated or unliquidated,
matured or unmatured, now existing or which may arise in the future including,
without limitation, any and all liabilities or obligations arising out of or
related to the Distribution, the Retained Assets, any Known Liabilities, any
Environmental Liabilities and the liabilities and obligations of GenCorp and any
member of the GenCorp Group under this Agreement and any Ancillary Agreements
(collectively, the "Retained Liabilities"). For purposes of this Agreement, the
Retained Liabilities shall be deemed to include all liabilities and obligations
described in the previous sentence and for purposes of this Agreement no such
liability or obligation shall be deemed a liability or obligation of OMNOVA or
an OMNOVA Entity even if by operation of law any such liability or obligation is
or becomes a liability or obligation of OMNOVA or an OMNOVA Entity.
Section 2.05. ISSUANCE OF SHARES. In exchange for the contribution of
the Contributed Assets and the assumption of the Assumed Liabilities, at the
closing OMNOVA shall issue to GenCorp that number of shares of OMNOVA Common
Stock, $0.10 par value per share, of OMNOVA (the "OMNOVA Common Stock") as is
necessary to effect the Distribution in accordance with Section 3.02. The shares
of OMNOVA Common Stock shall initially be represented by one stock certificate.
Section 2.06. CLOSING. The closing of the transactions contemplated by
this Article II shall take place simultaneously with the execution and delivery
of this Agreement. The "Closing" shall mean the making of the deliveries to be
made by OMNOVA and GenCorp respectively pursuant to this Section 2.06 and shall
be deemed to have occurred for all purposes at 11:59 p.m. on the date hereof
(the "Closing Time"). At or prior to the Closing Time the parties will executive
and deliver such deeds, stock powers, bills of sale, certificates of title,
assignments, transfers, assumptions and other agreements, instruments and
conveyances as are necessary to carry out this Agreement and the transactions
contemplated hereby.
Section 2.07. ASSIGNMENT OF ASSETS. Anything in this Agreement to the
contrary notwithstanding, unless OMNOVA shall otherwise determine, this
Agreement shall not constitute a sale, assignment, transfer or conveyance (a
"Transfer") or an agreement to Transfer any Contributed Asset, or any claim,
right or benefit arising thereunder or resulting therefrom (collectively, the
"Interests") if an attempted Transfer thereof, without the consent, waiver,
confirmation, novation or approval (a "Consent") of a third party, would
constitute a breach or other contravention thereof, be ineffective or in any way
adversely affect any rights
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thereunder, unless and until such Interest can be effectively Transferred
without such breach, contravention or adverse effect, at which time each such
Interest shall be deemed to be so Transferred. Until such Transfer, all such
Interests shall be held in trust by GenCorp for the sole benefit of OMNOVA.
GenCorp shall use all reasonable efforts to promptly obtain all necessary
Consents to Transfer all such Interests and GenCorp shall pay and discharge all
costs of obtaining any such Consent whether before or after the Closing Time. To
the extent any Consents necessary to Transfer any Interest have not been
obtained or are not in effect as of the Closing Time, GenCorp and OMNOVA shall,
during the remaining term of such Interest, use all reasonable efforts to (i)
cooperate in any reasonable and lawful arrangements designed to provide the
benefits of such Interest to OMNOVA, in which case OMNOVA shall pay or satisfy
the corresponding obligations for the enjoyment of such benefits to the extent
OMNOVA would have been responsible therefor if such Consent had been obtained
and such Interest had been transferred to OMNOVA; and (ii) enforce, at the
request of OMNOVA, any rights of GenCorp arising from such Interest against the
issuer thereof or the other party or parties thereto (including the right to
elect to terminate any such Interest in accordance with the terms thereof with
the consent of OMNOVA). Nothing in this Section 2.07 shall be deemed a waiver by
OMNOVA of its right to receive at the Closing Time an effective Transfer of all
of the Contributed Assets nor shall this Section 2.07 be deemed to constitute an
agreement to exclude any asset, property or right from the Contributed Assets.
Section 2.08. TERMINATION OF CERTAIN CONTRACTS. Except with respect to
this Agreement and the Ancillary Agreements (and agreements expressly
contemplated herein or therein to survive the Distribution by their terms or
which are included in the Contributed Assets), GenCorp and OMNOVA (on their own
behalf and on behalf of the members of the GenCorp Group and OMNOVA Group,
respectively) hereby terminate, any and all written or oral agreements,
arrangements, commitments or understandings, between or among them, effective as
of the Distribution Date. Each party shall, at the reasonable request of any
other party, take, or cause to be taken, such other actions as may be necessary
to effect such termination.
Section 2.09. DISCLAIMER. (a) Each of the parties understands and agree
that no party hereto nor any member of a Group is (whether in this Agreement, in
any Ancillary Agreement or otherwise) making any representation or warranty,
express, implied or otherwise, including any representation or warranty as to
(i) the assets, businesses or liabilities retained, transferred or assumed, (ii)
any consents, authorizations or approvals of third parties (including
Governmental Authorities) required for the transfer or assumption by such party
of any asset or liability, (iii) the value of any asset or freedom of any asset
from any lien, claim, equity, encumbrance or other security interest or adverse
claim, (iv) the absence of any defenses or right of set-off or freedom from
counterclaim with respect to any claim or asset, or (v) the legal sufficiency to
convey title to any asset.
(b) Each party hereto understands and agrees that there are no
representations or warranties, express, implied or otherwise whatsoever,
including, without limitation, no warranty, as to the merchantability or fitness
of any of the Contributed Assets
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transferred to OMNOVA pursuant to this Agreement or any Ancillary Agreement, and
all such Contributed Assets so transferred shall be transferred on an "AS IS,
WHERE IS" basis.
(c) Nothing contained in Section 2.09(a) or (b) shall alter,
diminish or impair the obligations of the parties under any other provision of
this Agreement or any Ancillary Agreement including, without limitation, under
Article V hereof.
ARTICLE III: DISTRIBUTION
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Section 3.01. DISTRIBUTION. On the date (the "Distribution Date") that
has been established by the GenCorp Board for the distribution (the
"Distribution") of the OMNOVA Common Stock, GenCorp shall distribute to each
holder of record of shares of GenCorp Common Stock on the record date
established by the GenCorp Board for the Distribution one share of OMNOVA Common
Stock for every one share of GenCorp Common Stock so held.
Section 3.02. DELIVERY. On the Distribution Date, GenCorp shall deliver
to the Distribution Agent one or more stock certificates representing all the
outstanding shares of OMNOVA Common Stock and shall instruct the Distribution
Agreement to effect the Distribution. OMNOVA shall provide all stock
certificates that the Distribution Agent may require in order to effect the
Distribution. The Distribution shall be effective at 12:01 a.m. on the
Distribution Date.
ARTICLE IV: CERTAIN COVENANTS
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Section 4.01. INTERIM USE OF GENCORP'S CORPORATE NAME. OMNOVA may,
after the Closing Time, utilize without further obligation to compensate
GenCorp, the trademarks or trade names "GenCorp" in connection with the items
described below:
(a) All stationery, forms, labels, product literature,
invoices, purchase orders and other similar documents and supplies included in
the Contributed Assets may be used by OMNOVA for a reasonable period after the
Distribution Date not to exceed 12 months.
(b) All inventory included in the Contributed Assets may be
sold or otherwise disposed of by OMNOVA without remarking.
(c) All molds, dies and similar items included in the
Contributed Assets which produce products displaying GenCorp's trademark, trade
name or corporate name, and all products produced using such molds or dies, may
be used and produced until such time as such molds, dies and similar items are
exhausted and replaced.
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(d) All sample goods (tip cards, swatch books, loose swatches,
binders and similar goods) both in stock and at distributors, specifiers, or
others may be used until discontinuation of all product lines to which such
sample goods pertain.
(e) As the corporate name for any OMNOVA Entity for a
reasonable period after the Distribution Date until a name change can be
registered and approved by the applicable Governmental Authority but not to
exceed 12 months.
(f) As signage, e-mail addresses and similar uses for a
reasonable period after the Distribution Date but not to exceed 12 months.
Section 4.02. TRANSITION AND FURTHER ASSURANCES.
(a) GenCorp shall, at any time and from time to time after the
Closing Time, upon the reasonable request of OMNOVA and at GenCorp's expense,
execute, acknowledge and deliver or cause to be executed, acknowledged and
delivered all such further deeds, stock powers, bills of sale, certificates of
title, assignments, transfers, conveyances, powers of attorney, notices of
commencement and assurances and take such other action as may be reasonably
requested by OMNOVA for the more effective assigning, transferring, granting,
conveying, assuring and confirming to OMNOVA, or to its successors and assigns,
of any of the Contributed Assets or aiding and assisting in collecting and
reducing to possession by OMNOVA any or all of the Contributed Assets, and to
protect the right, title and interest of OMNOVA therein and the enjoyment by
OMNOVA thereof, and otherwise to carry out the purpose and intent of this
Agreement.
(b) Without limiting any provision hereof, GenCorp agrees that
as of the Closing Time, OMNOVA shall be constituted and appointed the true and
lawful attorney of GenCorp with respect to the Contributed Assets, with full
power of substitution, in the name of OMNOVA or in the name of GenCorp or
otherwise and for the sole benefit and at the sole expense of OMNOVA, to
institute and prosecute all proceedings which OMNOVA may deem proper in order to
collect, assert or enforce any claim, right or title of any kind in and to the
Contributed Assets, to defend or compromise any and all suits and proceedings in
respect of any of the Contributed Assets, and to do all such acts and things in
relation thereto as OMNOVA in its sole discretion as may deem advisable. GenCorp
acknowledges that the foregoing powers are coupled with an interest and shall
not be revocable by GenCorp. OMNOVA shall be entitled to retain for its own
account any amounts collected pursuant to the foregoing powers.
Section 4.03. ASSETS ADMINISTRATION. If at any time or from time to
time any party or member of such party's Group, shall receive or otherwise
possess a right, property or asset that is owned by the other party or a member
of the other party's Group, such party or member shall promptly notify the other
party and transfer or cause to be transferred, such
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right, property or asset to such other party so entitled thereto without any
hold back or set-off. Prior to such transfer, such party or Group member
receiving or possessing such right, property or asset shall hold such right,
property or asset in trust for such other party.
Section 4.04. CORRESPONDENCE. GenCorp hereby authorizes OMNOVA, on and
after the Distribution Date, to receive and open mail addressed to GenCorp and
to deal with the contents thereof in a responsible manner. OMNOVA shall promptly
deliver to GenCorp any mail addressed to GenCorp that relates (or reasonably
appears to relate) to the Retained Assets or Retained Liabilities.
Section 4.05. INTERIM PERMIT OPERATIONS. Each party hereto shall
prepare and file with the appropriate licensing and permitting authorities for
the transfer or issuance, as may be necessary or advisable in connection with
the transactions contemplated hereby, of all Permits required in order for
OMNOVA to operate the Contributed Assets following the Closing Time. To the
extent permitted by Legal Requirements, OMNOVA shall have the right to operate
the Contributed Assets after the Closing Time under any Permits held by GenCorp
which were not transferred to OMNOVA at the Closing Time and with respect to
which notice has been given to the issuing Governmental Authority.
Section 4.06. AGREEMENT FOR EXCHANGE OF INFORMATION.
(a) Each of GenCorp and OMNOVA agrees to provide to the other,
and to cause the members of its Group to provide, as soon as reasonably
practicable after written request therefor, any Information in its possession or
under its control which the requesting party reasonably needs (i) to comply with
reporting, disclosure, filing or other requirements imposed on the requesting
party (including under applicable securities or tax laws) by a Governmental
Authority having jurisdiction over the requesting party, (ii) for use in any
other judicial, regulatory, administrative, tax or other proceeding or in order
to satisfy audit, accounting, claims, regulatory, litigation, tax or other
similar requirements, or (iii) to comply with its obligations under this
Agreement or any Ancillary Agreement; provided, however, that in the event that
any party determines that any such provision of Information could be
commercially detrimental, violate any law or agreement, or waive any
attorney-client privilege, the parties shall take all reasonable measures to
permit the compliance with such obligations in a manner that avoids any such
harm or consequence.
(b) Any Information owned by GenCorp or OMNOVA that is
provided to a requesting party pursuant to this Section 4.06 shall be deemed to
remain the property of the providing party. Unless specifically set forth
herein, nothing contained in this Agreement shall be construed as granting or
conferring rights of license or otherwise in any such Information.
(c) Except as otherwise agreed, the party requesting such
Information agrees to reimburse the other party for the reasonable out-of-pocket
costs, if any, of creating, gathering and copying such Information, to the
extent that such costs are incurred for the
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benefit of the requesting party.
(d) The parties agree to use their reasonable efforts to
retain all Information in their respective possession or control on the
Distribution Date for a period of six years or such longer period as required by
any applicable legal requirement and, with respect to the Information pertaining
to Taxes, until the expiration of the applicable statute of limitations or as
otherwise required by a Legal Requirement. No party will destroy or dispose of,
or permit any member of its Group to destroy or disposal of, any Information
which the other party may have the right to obtain pursuant to this Agreement
prior to the sixth anniversary of the date hereof or the expiration of any such
statute of limitations without first using its reasonable efforts to notify the
other party of the proposed destruction or disposal and giving the other party
the opportunity to take possession of such Information in lieu of such
destruction.
(e) The rights and obligations granted under this Section 4.06
are subject to any specific limitations, qualifications or additional provisions
regarding the sharing, exchange or confidential treatment of Information set
forth in any Ancillary Agreement.
Section 4.07. WITNESS SERVICES. At all times from and after the
Distribution Date, each of GenCorp and OMNOVA shall use its reasonable efforts
to make available to the other party's Group, upon reasonable written request,
the officers, directors, employees and agents of the members of its Group for
the fact finding, consultation or interviews and as witnesses to the extent that
such persons may reasonably be required in connection with the prosecution or
defense of any action in which the requesting party or any member of its Group
may from time to time be involved. Except as otherwise agreed, a party providing
such services to any other party under this Section 4.07 shall be entitled to
reimbursement from the recipient of such services upon the presentation of
invoices therefor, for reasonable out-of-pocket costs and expenses incurred in
connection with providing such services.
Section 4.08. CONFIDENTIALITY. Each of GenCorp and OMNOVA, on behalf of
itself and each member of its Group, agrees to hold, and to cause its respective
directors, officers, employees and agents to hold, in strict confidence, all
Information concerning the other Group furnished by any such other Group or its
respective directors, officers, employees or agents, at any time pursuant to
this Agreement, any Ancillary Agreement or otherwise, and shall not use any such
Information other than for such purposes as shall be expressly permitted
hereunder or thereunder, except, in each case, to the extent that such
Information has been (a) is in or later enters the public domain through no
fault of such party or any member of its Group or any of their respective
directors, officers, employees or agents, (b) later lawfully acquired from other
sources by such party (or any member of such party's Group) which sources are
not themselves bound by a confidentiality obligation, or (c) independently
generated without reference to any proprietary or confidential Information of
the other party. Each party agrees not to release or disclose, or permit to be
released or disclosed, any such Information to any other Person, except its
directors, officers, employees and agents who need to know such Information (who
shall be advised of their obligations hereunder with respect to such
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Information). Without limiting the foregoing, when any Information is no longer
needed for the purposes contemplated by this Agreement or any Ancillary
Agreement, each party will promptly after request of the other party either
return to the other party all Information in a tangible or electronic form
(including all copies thereof and all notes, extracts or summaries based
thereon) or certify to the other party that it has destroyed such Information
(and such copies thereof and such notes, extracts or summaries based thereon).
Notwithstanding the immediately two preceding sentences, in the event that a
member of a Group either determines on the advice of its counsel that it is
required to disclose any Information pursuant to applicable law or receives any
demand under lawful process or from any Governmental Authority to disclose or
provide Information of the other party (or any Group member of the other party)
that is subject to the confidentiality provisions hereof, such party shall
notify the other party prior to disclosing or providing such Information and
shall cooperate at the expense of the requesting party in seeking any reasonable
protective arrangements requested by such other party. Subject to the foregoing,
the Person that received such request may thereafter disclose or provide
Information to the extent required by such law (as so advised by counsel) or by
lawful process or such Governmental Authority.
Section 4.09. CERTAIN TAX MATTERS. (a) Neither the GenCorp Group nor
the OMNOVA Group shall take any action inconsistent with, nor fail to take any
action described in the Ruling Request or the Ruling, unless such Party (the
"Proposing Party") has obtained the prior written consent of the other Party
(the "Non-Proposing Party") which consent shall not be unreasonably withheld.
The Non-Proposing Party shall grant its consent to an action proposed by the
Proposing Party if the Proposing Party either (i) obtains a ruling with respect
to the proposed action from the IRS or other applicable Tax Authority that is
reasonably satisfactory, in form and substance, to the Non-Proposing Party and
its tax counsel (except that the Proposing Party shall not submit any ruling
request for the purpose of complying with this Section 4.09 if the Non-Proposing
Party reasonably determines that filing such request might adversely affect the
Non-Proposing Party), or (ii) obtains an opinion from tax counsel reasonably
satisfactory to the Non-Proposing Party (both as to choice of counsel and the
opinion given). Each of the Parties covenants that it will cooperate in
connection with any future submissions to the IRS in connection with the Ruling
Request and the Ruling, and will certify to the extent it can do so, upon
reasonable request, that the factual statements, representations and other
similar conditions contained therein are true, correct and complete in all
material respects. Each of the Parties represents that neither it nor any of its
Affiliates has any plan or intention to take any action which is inconsistent
with any factual statements, representations or other similar conditions
contained in the Ruling Request or in the Ruling.
(b) ACTIVE BUSINESS; CONTINUITY OF BUSINESS ENTERPRISE.
GenCorp and OMNOVA each represents that it has no plan or intent to reduce,
eliminate or otherwise discontinue the businesses relied upon in the Ruling
Request. GenCorp and OMNOVA each will not take any action which might result in
a substantial contraction or elimination of such businesses (for purposes of
Section 355(b) of the Code and the "continuity of business enterprise"
requirement for tax-free distributions under Section 355 of the Code) within the
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five year period beginning on the Distribution Date, without the prior written
consent of the other party which consent shall not be unreasonably withheld.
(c) CHANGE IN CONTROL. GenCorp and OMNOVA each represents
that, apart from the Spin-off, it has no plan or intention to engage in any
transaction or transactions having the effect of a change in the ownership or
50% or more of its outstanding stock (by vote or value), within the meaning of
Section 355(e) of the Code.
Section 4.10. INSURANCE MATTERS.
(a) With respect to any Losses suffered by OMNOVA relating to,
resulting from or arising out of any events or occurrences on or prior to the
Distribution Date (including, without limitation, in respect of the conduct of
the OMNOVA Business or the ownership or operation of the Additional Assets) for
which GenCorp, any GenCorp Entity or any OMNOVA Entity would be entitled to
assert, or cause any other Person to assert, a claim for recovery under any
policy of insurance maintained by or for the benefit of GenCorp, any GenCorp
Entity or any OMNOVA Entity (excluding insurance included in the Contributed
Assets) (collectively, "GenCorp Insurance"), at the request of OMNOVA, GenCorp
will, in good faith, promptly assert and diligently prosecute one or more claims
under the GenCorp Insurance; provided that all of GenCorp's and any GenCorp
Entities reasonable out-of-pocket costs and expenses incurred in connection with
asserting and prosecuting such claim shall be promptly reimbursed by OMNOVA
(including, without limitation, costs and expenses resulting from any
deductible, policy limit, self-insurance retention, or retroactive or
retrospective premium). To the extent required under the terms of the GenCorp
Insurance to give effect to this Section 4.10, GenCorp will be deemed, solely
for the purpose of asserting claims under the GenCorp Insurance pursuant to the
immediately preceding sentence to have assumed or retained liability for such
Loss to the extent of the policy limits of the applicable policy of GenCorp
Insurance. GenCorp shall not release, disseminate, commute or otherwise
terminate (collectively,"Terminate") any policy of GenCorp Insurance unless: (i)
GenCorp gives OMNOVA reasonable advance written notice of its intent to do so
(which notice shall describe in reasonable detail the policy to be Terminated
and the terms of the Termination sought to be entered into by GenCorp or any
GenCorp Entity), (ii) GenCorp agrees in writing with OMNOVA to assume any and
all liability that the insurer would have had in respect of any Loss which has
or may be suffered by OMNOVA which but for such Termination would have been
covered by the Terminated policy, and (iii) GenCorp provides OMNOVA with
reasonable assurances of its ability to satisfy its obligations under (ii)
above.
(b) Each of GenCorp and OMNOVA shall acquire and maintain in
force for a period of three years (the "Initial Period") after the Distribution
Date directors and officers insurance coverage equivalent to the directors and
officers insurance coverage in force on the Distribution Date. If at any time
and for any reason during the six years following the Initial Period a member of
the GenCorp Group or OMNOVA Group decides to terminate or chooses not to renew
its directors and officers insurance coverage in force at the end of the Initial
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Period, then the member deciding to terminate or choosing not to renew such
coverage shall, at its expense, convert any such policy to a run-off policy that
shall remain in force for not less than six years after the conversion date.
(c) With respect to aircraft products produced by GenCorp
prior to the date hereof, GenCorp will include and maintain OMNOVA as an insured
under any Aircraft Products Liability Policy of GenCorp in force as of the date
hereof or hereafter obtained. GenCorp will give OMNOVA reasonable advance
written notice if GenCorp ceases to maintain Aircraft Product Liability
insurance which is substantially similar to the insurance in force as of the
date hereof.
ARTICLE V: INDEMNIFICATION
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Section 5.01. INDEMNIFICATION BY GENCORP. Subject to Section 5.03,
GenCorp shall indemnify, defend and hold harmless OMNOVA, each OMNOVA Entity and
each of their respective directors, officers, employees and agents, and each of
the heirs, successors and assigns of any of the foregoing (the "OMNOVA
Indemnitees") from and against all Losses arising out of, associated with, or
resulting from:
(a) any failure to perform or breach of any covenant or
agreement made by GenCorp in this Agreement or in any Ancillary Agreement;
(b) any failure to pay, perform or otherwise promptly
discharge any Retained Liability; or
(c) any Spin-Off Taxes excluding any Spin-Off Taxes described
in Section 5.02(c).
Section 5.02. INDEMNIFICATION BY OMNOVA. Subject to Section 5.03,
OMNOVA shall indemnify, defend and hold harmless GenCorp, each GenCorp Entity
and each of their respective directors, officers, employees and agents, and each
of the heirs, successors and assigns of any of the foregoing (the "GenCorp
Indemnitees") from and against all Losses arising out of, associated with, or
resulting from:
(a) any failure to perform or breach of any covenant or
agreement made by OMNOVA in this Agreement or in any Ancillary Agreement
delivered by OMNOVA;
(b) any failure to pay, perform or otherwise promptly
discharge any Assumed Liability; or
(c) any Spin-Off Taxes resulting from any member of the OMNOVA
Group or any employee, officer or director of such member acting in his or her
capacity as such, taking or failing to take any action following the Spin-Off
(including any actions specified in
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Section 4.09) or any change in ownership of OMNOVA stock whether or not OMNOVA
has acted or failed to act in connection with such change, to the extent that
such action or failure to act causes the Spin-Off to fail to qualify as fully
tax-free under Sections 368(a)(1)(D), 355, and 361, or any other provisions of
the Code.
Section 5.03. THIRD PARTY CLAIM PROCEDURES. If a party receives notice
of the assertion of any Third Party Claim in respect of which such party may
have a claim under Section 5.01 or 5.02 then the following shall apply:
(a) The party against whom any such Third Party Claim is made
(the "Indemnified Party"), shall promptly provide written notice (an "Indemnity
Notice") of such Third Party Claim to the other party (the "Indemnifying
Party"). Such Indemnity Notice shall describe in reasonable detail the nature of
the Third Party Claim and the basis for its claim under Section 5.01 or 5.02;
provided that the failure to provide such notice shall not affect a party's
rights under Section 5.01 or 5.02 except to the extent the other party is
actually prejudiced by the failure to give such notice and then only to the
extent of such actual prejudice. An Indemnity Notice by a party shall not
preclude such party from giving subsequent Indemnity Notices with respect to
other claims, whether arising before or after the claims for which prior notice
is given.
(b) Upon receipt of an Indemnity Notice, the Indemnifying
Party shall have the right to promptly assume, at its sole cost and expense, the
defense or settlement of such Third Party Claim with counsel reasonably
acceptable to the Indemnified Party, provided that the Indemnifying Party has
irrevocably agreed in writing to defend, indemnify and hold harmless the
Indemnified Party in respect of all Losses arising or resulting from such Third
Party Claim. The Indemnifying Party shall give prompt written notice to the
Indemnified Party of its intent to enter into such agreement and assume the
defense of any such Third Party Claim and shall conduct the defense and/or
settlement of such Third Party Claim diligently and in good faith. If the
Indemnifying Party enters into such agreement and assumes such defense then for
so long as the Indemnifying Party is defending such Third Party Claim in
accordance with its obligations hereunder then the Indemnified Party shall not
admit any liability with respect to, or settle, any said Third Party Claim
without the Indemnifying Party's prior written consent; provided, however, that
the Indemnified Party shall have the right to settle, compromise or discharge
such Third Party Claim without the consent of the Indemnifying Party if the
Indemnified Party releases the Indemnifying Party from its indemnification
obligation hereunder with respect to such Third Party Claim. If requested by the
Indemnifying Party, the Indemnified Party shall cooperate fully in the defense
or prosecution of any Third Party Claim the defense of which has been assumed by
the Indemnifying Party, and the Indemnified Party shall furnish such records,
information and testimony and attend all such conferences, discovery
proceedings, hearings, trials and appeals as may be reasonably requested in
connection therewith, but the Indemnifying Party will reimburse the Indemnified
Party for any reasonable out-of-pocket fees or expenses incurred by it in so
cooperating or acting at the request of the Indemnifying Party.
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(c) Notwithstanding Section 5.02(b), if (i) an Indemnified
Party is obligated to permit an insurer or other Person having liability
therefore to assume the defense of a Third Party Claim, or (ii) an Indemnified
Party determines in good faith that there is a reasonable possibility that a
Third Party Claim may materially and adversely affect it or its assets or
business other than as a result of the payment of monetary damages, or (iii) the
Indemnifying Party and Indemnified Party are both named parties in a Third Party
Claim and in the reasonable judgment of the Indemnified Party a conflict of
interest (other than a dispute regarding the scope of the Indemnified Party's
right to indemnification under this Agreement) between the Indemnified Party and
the Indemnifying Party exists or (iv) if the Indemnifying Party fails, after
reasonable notice from the Indemnified Party, to diligently and in good faith
defend such Third Party Claim, then, at the option of the Indemnified Party, the
Indemnifying Party shall not have the right to assume the defense of such Third
Party Claim and the Indemnified Party may, by notice to the Indemnifying Party,
reassume the defense of any such Third Party Claim previously assumed by the
Indemnifying Party. No retention or reassumption of any such defense by the
Indemnified Party shall prejudice any rights of the Indemnified Party under
Section 5.01 or 5.02.
(d) If the Indemnifying Party does not give notice and assume
the defense of such Third Party Claim in accordance with Section 5.03(b) or is
not entitled to assume or retain the defense thereof, the Indemnified Party
shall have full authority to defend and/or settle any such Third Party Claim for
the account of and at the sole risk, cost and expense of the Indemnifying Party.
If the Indemnified Party undertakes the defense and/or settlement of any such
Third Party Claim it shall do so diligently and in good faith and the
Indemnifying Party shall from time to time upon the request of the Indemnified
Party reimburse the Indemnified Party for the costs incurred by the Indemnified
Party in defending and/or settling such Third Party Claim. The Indemnifying
Party shall be bound by any settlement entered into by the Indemnified Party to
the extent that such settlement is commercially reasonable measured in the
context of the matter settled and by any judgment resulting from such Third
Party Claim. If the Indemnifying Party had the right to assume the defense and
settlement of such Third Party Claim and did not do so then, in any dispute
between the Indemnifying Party and Indemnified Party regarding the defense or
settlement of such Third Party Claim the Indemnifying Party shall have the
burden to prove that the Indemnified Party did not defend such Third Party Claim
diligently and in good faith and/or settle such claim in a commercially
reasonable manner.
(e) Notwithstanding any provision of this Agreement or any
Ancillary Agreement the parties agree that if any right of the Indemnified Party
would be irreparably and irredeemably prejudiced by its failure to join the
Indemnifying Party in any legal proceeding brought by a third party asserting a
Third Party Claim, then the Indemnified Party may join the Indemnifying Party in
such legal proceeding brought by the third party asserting such Third Party
Claim as to which any right under Section 5.01 or 5.02 would or might apply, for
the purpose of enforcing any such right.
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(f) The Indemnifying Party shall not admit any liability,
settle, compromise, pay or discharge, without the consent of the Indemnified
Party, any Third Party Claim being defended by it unless with respect to any
settlement (i) the Indemnified Party is not obligated to perform or to refrain
from performing any act under such settlement and there is no encumbrance on any
assets of the Indemnified Party; (ii) there is no finding or admission of any
violation of any Legal Requirement, violation of the rights of any Person by the
Indemnified Party or any other liability or obligation of the Indemnified Party
to any Person; and (iii) the Indemnified Party receives, as a part of such
settlement, a complete release, in form and substance reasonably satisfactory to
the Indemnified Party.
(g) The party controlling the defense of a Third Party Claim
shall keep the other party reasonably informed at all stages of the defense
and/or settlement of such Third Party Claim. The party not controlling the
defense of any such Third Party Claim shall have the right, at its sole cost and
expense, to participate in, but not control, the defense of any such Third Party
Claim.
Section 5.04. LIMITATIONS IN INDEMNIFICATION OBLIGATIONS. The amount
that an Indemnifying Party is or may be required to pay to an Indemnified Party
pursuant to Section 5.01 or 5.02 shall be reduced by any Insurance Proceeds or
other amounts actually recovered by or on behalf of such Indemnified Party, in
reduction of the related Loss. If an Indemnified Party shall have received the
payment required by this Agreement from an Indemnifying Party in respect of any
Loss and shall subsequently actually receive Insurance Proceeds or other amounts
in respect of such Loss, then such Indemnified Party shall pay to such
Indemnifying Party a sum equal to the amount of such Insurance Proceeds or other
amounts actually received (up to but not in excess of the amount of any
indemnity payment made hereunder). No insurer or other Person shall: (a) be
relieved of the responsibility to pay any claims which it would otherwise be
obligated to pay in the absence of the foregoing indemnification provisions; (b)
solely by virtue of the indemnification provisions hereof, have any subrogation
rights with respect to any claims which it would otherwise be obligated to pay
or (c) be entitled to a benefit it would not be entitled to receive in the
absence of the foregoing indemnification provisions.
Section 5.05. PRIMARY POLICY. Any insurance policy of any
Indemnified Party shall be deemed to be primary to any obligation of an
Indemnified Party under this Agreement.
ARTICLE VI. MISCELLANEOUS PROVISIONS
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Section 6.01. NOTICES. All notices, demands and other communications
which may or are required to be given to or made by either party to the other in
connection with this Agreement shall be in writing (including telex, fax or
other similar writing) and shall be deemed to have been duly given or made: (a)
if sent by registered or certified mail, five days after the posting thereof
with first class postage attached, (b) if sent by hand or overnight
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delivery, upon the delivery thereof and (c) if sent by telex or fax, upon
confirmation of receipt of such telex or fax, in each case addressed to the
respective parties as follows:
GenCorp: GenCorp Inc.
Xxxxxxx 00 & Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Attn: Secretary
OMNOVA: OMNOVA Solutions Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Secretary
or to such other address and to the attention of such other persons as either
party hereto may specify from time to time by notice to the other party.
Section 6.02. ENTIRE AGREEMENT. This Agreement, the Schedules hereto
and the Ancillary Agreements embody the entire agreement of the parties hereto
with respect to the subject matter hereof, and supersede all prior and
contemporaneous agreements, oral or written, relative to said subject matter.
Section 6.03. ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns; provided, however, that neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned (other than by merger or pursuant to a sale of all or substantially all
of a party's assets to one Person) by either of the parties hereto without the
prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that no such assignment shall relieve
the assigning party of any liabilities or obligations hereunder. Any transfer or
assignment of any of the rights, interests or obligations hereunder in violation
of the terms hereof shall be void and of no force or effect.
Section 6.04. CAPTIONS. The Table of Contents and Article and Section
headings of this Agreement are inserted for convenience only and shall not
constitute a part of this Agreement in construing or interpreting any provision
hereof.
Section 6.05. WAIVER; CONSENT. This Agreement may not be changed,
amended, terminated, augmented, rescinded or discharged (other than by
performance), in whole or in part, except by a writing executed by the parties
hereto, and no waiver of any of the provisions or conditions of this Agreement
or any of the rights of a party hereto shall be effective or binding unless such
waiver shall be in writing and signed by the party claimed to have given such
waiver or consented thereto. Except to the extent that a party hereto may have
otherwise agreed in writing, no waiver by that party of any breach by the other
party of any of its obligations hereunder shall be deemed to be a waiver of any
other subsequent or prior breach
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of the same or any other obligation by the other party, nor shall any
forbearance by the first party to seek a remedy for any noncompliance or breach
by the other party be deemed to be a waiver by the first party of its rights and
remedies with respect to such noncompliance or breach.
Section 6.06. NO THIRD PARTY BENEFICIARIES. Except as provided in
Article V hereto nothing herein, expressed or implied, is intended or shall be
construed to confer upon or give to any Person any legal or equitable right,
remedy, claim or other benefit under or by reason of this Agreement.
Section 6.07. SURVIVAL OF AGREEMENTS. All covenants and agreements of
the parties contained in this Agreement shall survive the Closing Time and the
Distribution Date.
Section 6.08. EXPENSES. Except as otherwise set forth in this Agreement
or any Ancillary Agreement, all costs and expenses incurred on or prior to the
Distribution Date (whether or not paid on or prior to the Distribution Date) in
connection with the preparation, execution, delivery and implementation of this
Agreement and any Ancillary Agreement, the Separation, the Distribution and the
consummation of the transactions contemplated hereby and thereby shall be
charged to and paid by GenCorp. Except as otherwise set forth in this Agreement
or any Ancillary Agreement, each party shall bear its own costs and expenses
incurred after the Distribution Date.
Section 6.09. GROUP PERFORMANCE. Each of the parties hereto shall cause
to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein or in the Ancillary Agreements to be
performed by a member of its Group.
Section 6.10. COUNTERPARTS. This Agreement may be executed
simultaneously in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
Section 6.11. GENDER. Whenever the context requires, words used in the
singular shall be construed to mean or include the plural and vice versa, and
pronouns of any gender shall be deemed to include and designate the masculine,
feminine or neuter gender.
Section 6.12. GOVERNING LAW. This Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of Ohio
exclusive of laws relating to conflicts of law.
Section 6.13. INTERPRETATION. It is acknowledged by OMNOVA and GenCorp
that this Agreement has undergone several drafts with the negotiated suggestions
of each and, therefore, no presumptions shall arise favoring either party by
virtue of the authorship of any provision of this Agreement.
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Section 6.14. BLUE PENCIL. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the court making the determination of invalidity or
unenforceability shall have the power to delete specific words or phrases, or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed.
Section 6.15. CONFLICTS. Notwithstanding any other provision of this
Agreement, in the event of any conflict between this Agreement and the
Employment Matters Agreement or this Agreement and the Tax Matters Agreement,
the Employment Matters Agreement or the Tax Matters Agreement, as the case may
be, shall control. Any Dispute under this Agreement shall be resolved as
provided for in the Alternative Dispute Resolution Agreement, of even date,
between GenCorp and OMNOVA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
OMNOVA SOLUTIONS INC. GENCORP INC.
By:______________________ By:______________________
Name:____________________ Name:____________________
Title:___________________ Title:___________________
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Schedule 1.01(a)
Corporate Real Property
GenCorp Corporate Headquarters
000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
GenCorp Technology Center
0000 Xxxxxxxxx Xxxx
Xxxxx, Xxxx 00000-00000
GenCorp Flight Operations
Building #8 and lease of associated land
0000 Xxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000
31
Schedule 1.01(b)
Certain Discontinued Operations
For the avoidance of doubt and notwithstanding Section 2.03, the following
matters and locations and all liabilities and obligations arising or resulting
therefrom shall be deemed to be, without limitation, Retained Liabilities:
(i) FORMER FACILITY LOCATIONS: The following former facility locations:
1. Lawrence, Massachusetts - including, without 10. Troy, Michigan
limitation, 00 Xxxxxxx Xx. xxx 0 Xxxxxxx Xx.
2. Ashtabula, Ohio 11. Montebello, California
3. Point Pleasant, West, Virginia 12. Orange, California
4. Toledo, Ohio 13. Xxxxxxxx, Xxxxx Xxxxxx
0. Ada, Oklahoma 14. Compton, California
6. Cuba, Missouri 15. Xxxxxxxxxx, Xxxxxxxx
0. Xxxxxxxxx, Xxxxx 16. E. Rutherford, New Jersey
8. Xxxxxxx, Xxxxxxxxxxxxx
0. Xxxxxx, Georgia
(ii) OTHER LOCATIONS: The following other locations:
1. Auburn Road Landfill, Londonderry, New Hampshire
2. Solvents Recovery Services of New England, Inc., Southington, Connecticut
3. Old Southington Landfill, Southington, Connecticut
4. Ashtabula River, Ashtabula County, Ohio
5. Fields Brook, Ashtabula County, Ohio
6. New Lyme Landfill, Ashtabula County, Ohio
7. Big D Landfill, Ashtabula, Ohio
8. Xxxx plant in Ashtabula, Ohio
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9. Xxxxxxxx/Xxxxx Xxxx Xxxxxxxxx, Xxxxxx, Xxxx
10. Dura Avenue Landfill, Toledo, Ohio
11. Unnamed Tributary, Toledo, Ohio
12. King Road Landfill, East Sylvania Township, Xxxxx County, Ohio
13. Four County Landfill, Xxxxxx County, Indiana
14. Industrial Excess Landfill, Uniontown, Ohio
15. Organic Chemical, Inc., Granville, Michigan
16. Xxxx Refinery, Xxxx, Arkansas
17. Chemical Recycling Inc., Wylie, Texas
18. Northside Sanitary Landfill, Marion, Indiana
19. PCB Treatment, Inc., Kansas City, Kansas and Kansas City, Missouri
20. Third Site, Zionsville, Indiana
21. Xxxxxxx/Criner Landfill, Criner, Oklahoma
22. Xxxxxx Xxxxx Dump, Marion, Indiana
23. Panasote, Pt. Pleasant, West Virginia
24. Xxxxxxxx Dump Site, Columbus, Mississippi
25. Delta Chemical, North Buffalo Township, Pennsylvania
(iii) OTHER MATTERS: All of the matters described in the Litigation Report of X.
X. Xxxxxxxx to the Audit Committee dated August 31, 1999 excluding the roofing
matters described in Part 4.A. of such report.
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Schedule 1.01(c)
OMNOVA REAL PROPERTY
PERFORMANCE CHEMICALS
---------------------
Owned:
-----
000 X. Xxxxxxxxx Xxxxxx 00 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxxx, XX 00000
0000 Xxxxxxx 00 XX 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000 Xxxxx Xxx, XX 00000
One GenCorp Drive 0000 Xxxx Xxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Leased:
------
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx Street Warehouse
Compartment Nos. 1 & 2
Chester, SC
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DECORATIVE & BUILDING PRODUCTS
------------------------------
Owned:
-----
Route 895 West, Hickory Drive Xxxxxxxxx Xxxx, Xxxx Xxxxxxx
Xxxxxx, XX 00000-0000 Xxxxxxxxx, Xxxx
Xxxxxxx XX00 0XX
000 Xxxxxxxxx Xxxx Xxxx 0 Xxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
Xxxxxxxx Avenue 0000 Xxxxx Xxxxx Xx., Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Leased:
------
00 Xxx Xxx Xxxxxxxxx Xxxxxxxxxxxx 00
Xxxxxxx, Xxxxxx 00 Xxxxxx xxx Xxxxxxxx
0000 Xxxxxxxx, Xxxxxxx
0000 Xxxxxxxxxx Xxxxxxxxx 00-00 Xxxx Xxxx Xxx
Xxxxxxxxx, XX Xxxxx Xxxxxxxxx,
Xxxxxxxxxxxxxx Xxxxxxx XX0 4 XX
XX Xxx 00000 000 Xxx Xx Xxxxx
Xx. XXX Xxx Hureir Xxxxx Xxxxxx 00000
Xxxxx, XXX
0000 Xxxxxxxx 00 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxx Xxxxx, XX 00000
0000 Xxxxxx Xxxx Xxxxxx Xxxxx X 0000 Xxxx Xxxxxx Xxxx Xxxxx 000-0
Xxxxxx, XX 00000-0000 Xxxxxxxxx, XX 00000
000 Xxxx Xxxxxx - Xxx X 302 N. El Camino Real - Xxxxx 000 - Xxxx 00
Xxxxxxxx, XX 00000 Xxx Xxxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxx 0000 Xxxx 0xx Xxxxxx - Xxxxx 0
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Branch Estates 0000 X Xxxxx Xxxx - Suite 600 - Office 36
0000 Xxxxx 00 Xxxxx 000 Xxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000-0000
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000 Xxxxxxxxx Xxxx 000-000 Xxxxxxxxx Xxxx
Xxxxxx, XX Xxxxxxx, Xxxxxxxx X00 0XX
00 Xxxxxxxx Xxxxxx Xxxxxxx Xxx
Xxxxx Xxxxxxxxx Xxxxxxxx Avenue - adjacent to mfg building
Xxxxxxxxxxxxx XX0 RF Jeannette, PA
0000 Xxxxx XxXxxxxx Xxxx - Suite 0 Xxxx Xxxxx Xxxxx 0 Xxxxxx Xxxxx
XxXxxxxx, XX 00000 Xxxx Xxxx Xxxx Xxxx
Xxxxx, Xxxxxxx XX00 0XX
00/00 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx X0 0XX Xxxxxx, XX 00000
Xxxxxxxx Xxxxxx Xxxx 000 Xxxxxxx Xxxx #00-00
591 North Avenue - Suite 2/1st Far Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx 000000
000 Xxxxxxxx Xxxxxx - Xxxxx 000 0/x Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx Xxxxxx, Xxxxxx 00-000
Xxxxxxxxxx, Xxxxxxx X00 ONS
Paddock Wood Distribution Center
Xxxxxxxxx Xxxx, Xxxx Xxxxxxx
Xxxxxxxxx, Xxxx
Xxxxxxx XX00 0XX
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Schedule 1.01(d)
OMNOVA Entities
Decorative Products Thailand, Inc., an Ohio USA corporation
CPPC - Decorative Products Company Limited, a Thailand limited company
Decorative Products (Singapore) Pte, Ltd., a Singapore limited company
GenCorp do Brasil Ltd., a Brazilian limited liability partnership
GenCorp Services Inc., an Ohio USA corporation
GenCorp Wallcovering (USA), Inc., an Ohio USA corporation
GenCorp Wallcovering (UK) Limited, a United Kingdom limited company
Muraspec SARL, a French societe a responsabilite limitee
Muraspec Polska Sp. z.o.o., a Polish limited liability company
Muraspec Dubai, an Emirate of Dubai limited liability company
GenCorp Performance Chemicals (U.K.) Ltd.
GenCorp Polymer Products SARL, a French societe a responsabilite limitee
GenCorp Performance Chemicals (Singapore) Pte, Ltd., a Singapore limited company
GenCorp Performance Chemicals Canada, a Canada corporation
Sequa Chemicals, S.A., a Spanish public limited company
Gen I Services, Inc., an Ohio USA corporation
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Schedule 1.01(e)
Discontinued OMNOVA Operations
Any terminated, divested or discontinued business or operation of GenCorp or any
OMNOVA Entity which: (i) is not a Known Liability AND (ii) was terminated,
divested or discontinued by GenCorp or an OMNOVA Entity after January 1, 1993
AND (iii) was, at the time of such termination, divestiture or discontinuance,
engaged in the manufacture of specialty chemicals, coated fabrics, vinyl films,
wallcovering or commercial roofing; provided, however, that the "Discontinued
OMNOVA Operations" shall only include any liability or obligation to the extent
resulting from the manufacture of specialty chemicals, coated fabrics, vinyl
films, wallcovering or commercial roofing and shall not include any liability or
obligation which arises or results from any other business or operation all of
which liabilities and obligations shall remain Retained Liabilities. The
Discontinued OMNOVA Operations shall be deemed to include, without limitation,
the divested residential wallcovering product line, the divested urethane
adhesive product line and the divested Newcomerstown, Ohio facility.
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Schedule 1.01(f)
OMNOVA Intellectual Property
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